instance in their own behalf as to their character touching the matter for which they may be on trial, but in civil cases parties may not introduce witnesses as to their own good character in general. Nor may parties attack their opponent's character in civil cases by evidence as to unfavorable or untruthful matter, except in the manner above indicated.

But it is urged that all the tribunals in the Office should pass upon this question, and that testimony should not be struck out upon a motion of this character; but that rule is confined to questions of fact claimed to be irrelevant to the principal fact in dispute. Testimony of the character objected to in the first part of this motion is not evidence and should not be before the various tribunals of the Office or before any tribunal in a civil case. The magistrate administering justice should be blind to the general character of litigants, except as their truthfulness as witnesses is brought into question by the manner in which they testify or as it is disclosed by the circumstances of the case. That a witness has been twice called is a circumstance touching his credibility alone and not the competency of the evidence. A second deposition by a witness cannot as mere matter of law be excluded, but the fact that a witness has been called and then recalled may be commented upon, and in some cases it is a circumstance touching the credibility of the witness. The deposition, however, cannot be excluded from the consideration of the various tribunals.

It is ordered that the testimony concerning the character of both the parties be struck out, and to that extent the appeal is allowed. The appeal on the second branch of the motion is denied.

CLARKE v. PETTENGILL v. CRANCER.

Decided October 31, 1896.

77 O. G., 1271.

INTERFERENCE-PETITION FOR RECONSIDERATION.

A petition asking that the Examiner of Interferences be directed to reconsider his decision awarding priority, upon the ground that such decision is a travesty on equity practice, a gross injustice, that it is in direct contradiction to the evidence, and that the Examiner has exceeded his powers, when the record of the case discloses that the Examiner acted with deliberation and apparent fairness, is wholly unjustifiable and should not have been presented.

ON PETITION.

ADJUSTABLE HANDLE-BAR.

Application No. 567,387 of George H. Clarke filed October 30, 1895. Application No. 558,100 of A. N. Pettengill filed August 3, 1895. Application No. 553,857 of George A. Crancer filed June 24, 1895.

Messrs. Burridge & Cutter for Clarke.

Mr. E. W. Anderson for Pettengill.

Messrs. Higdon, Higdon & Longan for Crancer.

SEYMOUR, Commissioner:

This case comes before me on petition by Pettengill praying that the Examiner of Interferences may be directed to reconsider his decision of October 16, 1896, awarding priority of invention to Crancer and that he be directed to render a decision in accordance with the evidence and the facts before him.

The petition alleges that the decision is a travesty on equity practice, a gross injustice to the petitioner, and a discredit to the Office; that it is in direct contradiction to the evidence before the Examiner and is a direct and unwarranted attack upon the credibility of the petitioner and his witnesses; that the Examiner has exceeded his powers in going behind the evidence presented and disregarding the same; that the Examiner has raised the question of laches and has decided it against the petitioner; that the Examiner has raised presumptions against the petitioner and decided them adversely to him and in favor of Crancer. In view of the extraordinary remedy which I am asked to apply I have examined these statements somewhat closely and have examined the entire record as though the case were before me on the merits, and I have questioned the counsel who presented this petition. It appears that Pettengill attempted to prove priority of invention by testifying that he had conceived of the improvement in the year 1893; that he made drawings of it at that time, which were exhibited to his sons, and that he made handle-bars in the course of the year 1895. None of these drawings or sketches were produced in evidence or in any manner brought to corroborate these statements, although his sons and another witness testified that sketches were shown to them. The absence of these exhibits was not explained. "Exhibit A" was introduced, which is a copy, apparently, of the drawing forming part of the application, and the witnesses were asked whether this represented what the applicant Pettengill had invented, to which answer was made in the affirmative. But this drawing, being a copy, might have been made just prior to the giving of this testimony, and is not admissible in itself as proof that the sketches were made in 1893, except upon a sufficient showing that those sketches were lost and that they had been diligently searched for and could not be found.

It is stated that the case was not tried according to the instructions of counsel and that the handle-bars were present when the witnesses testified; but in the matter of an invention so closely resembling many other articles of the same type the fact that the witness had them present when he testified, but did not put them in evidence, is very properly a circumstance to be weighed against the petitioner. I do not care to assume that the case was so badly tried as the petitioner's counsel suggests. It is fair to assume that it was tried upon deliberation; that exhibits that were accessible were not put in the case because they would not strengthen the case, and in the absence of explanation why

"Exhibit A" was put in evidence, when not in itself admissible, all tend to the conclusion that Pettengill was not the prior inventor. If Crancer, an earlier applicant, can be defeated upon such a showing, then the burden of proof which is upon Pettengill may be disposed of as a mere feather's weight.

In the case of Soley v. Hebbard, (C. D., 1895, 182; 70 O. G., 921,) a contest on priority recently decided by the Court of Appeals of the District of Columbia between two applicants, of which Hebbard was the earlier, Morris, judge, speaking for the court, said:

Moreover, Hebbard's application for a patent was the first in the order of time. Under these circumstances Hebbard is in the position of a defendant in possession, with the prima facie right of ownership by virtue of his possession, and it is incumbent upon any one who would dispute his right to establish an antagonistic title by a clear and fair preponderance of evidence. It will not do merely to raise a doubt, so as to render a defendant's right questionable. There must be a reasonable preponderance of evidence in order to overcome the presumption of right arising from the fact of possession. The burden of proof in the present case is upon the appellant Soley, to show that his (Soley's) idea was actually communicated to Hebbard and acted upon by the latter, and if he fails to make such proof his claim cannot be sustained and the appellee must be left in the possession of the invention where we find him. Has the appellant so made out his case?

My conclusion is, and I am inclined to express it with emphasis, not only that the Examiner of Interferences violated no law, did no injustice, but that this petition, and particularly the unwarranted attack upon the Examiner attempted in it, is wholly unjustifiable, and that this petition, whether considered as an attempt to bring before the Commissioner that which under the practice can ordinarily be reviewed. in the first instance only by the Examiners-in-Chief or as a gratuitous attack upon the Examiner, should not have been presented. The petition is accordingly denied.

PATENTABILITY-PROCESS OF PURIFYING OIL-USE OF COPPER MATTE.

In a process of purifying oil the use of pulverized copper matte to remove the "skunk" from the oil is an improvement upon the use of a mixture of pulverized copper oxid and pulverized iron oxid of such character as is not to be expected from those versed in the art, and required invention.

APPEAL from the Examiners-in-Chief.

TREATMENT OF Petroleum.

Application of Herman Frasch filed July 14, 1890, No. 358,712.

Messrs. W. Bakewell & Sons and Mr. C. J. Hedrick for the applicant.

SEYMOUR, Commissioner:

This is an appeal from the decision of the Examiners-in-Chief sustaining the action of the Primary Examiner in rejecting the following claims:

1. In the art of distilling petroleum-oils containing sulfur compounds of the character specified, the improvement which consists in eliminating the sulfur by subjecting the oil during the process of distillation either in a liquid or vaporous condition to roasted and pulverized copper matte, substantially as described.

2. The process of treating oil of the Lima class, for removal of the "skunk," by subjecting the "skunk"-bearing oil during a distillation thereof to a pulverulent purifying material of metallic oxid having a basis of iron and copper in the intimate union resulting from a melting together of their compounds and admixture in the molten state and consisting of roasted and pulverized copper matte, the purifying material being used in the body of oil in distillation or brought into contact with the vapors after they have been given off from said body, substantially as described.

The references are patents to Parsons, April 13, 1869, No. 88,978; Frasch, February 21, 1888, No. 378,246; Pitt, March 13, 1888, No. 379,492; British Patent No. 2,882 of 1860, to Bowditch.

The two claims do not differ in substance from each other. The second claim merely states with more detail the steps of the process.

The process set forth by this case is an improvement over the process covered by the appellant's patent No. 378,246, which has been the reference principally relied upon as an anticipation of the appealed claims, and is therefore the only reference that need be considered.

The object of the process of the application and of the patents is the treatment of that class of oils known as "Lima" oil to remove the sulfur compounds which give to this oil the peculiarly offensive odor known as "skunk." In the patent Frasch distils the oil with suitable metallic oxids or suitable compounds of such oxids dissolved in or mixed with the oil, and by so doing the removal of all or of practically all of the sulfur compounds is effected. When he uses the oxid or compound in the solid state, it is preferably in as fine a powder as practicable. Two of the oxids mentioned in the patent as suitable for use are ferric and cuprous, and it is stated that by distilling the oil with one or more of these oxids the sulfur compounds are broken up and sulfur is precipitated as a sulfid or sulfids. This patent covers the treatment of Lima oils with a powder obtained by roasting and pulverizing one of the given suitable oxids or a mixture of two or more of such powders.

The present application is for a specific improvement upon the patent, and consists in the use of pulverized copper matte to remove the "skunk" from the oil. To render the matte suitable for his purpose, the appellant takes partially reduced native sulfid of copper containing about sixty per cent. of copper and forty per cent. of iron and sulfur, and after grinding it to a powder places the powdered matte in a furnace and roasts it. By the roasting the copper, iron, and sulfur are each oxidized. The sulfur dioxid goes off as a gas, leaving the oxid of iron and the oxid of copper fused together.

It seems that this powder of oxidized copper matte has never been used in the purification of oil, and yet I am not able to agree with the contention of the appellant that it is in itself a new article of manufacture, copper matte having been known for an indefinitely long period. The mere change in its physical state involved in reducing it to powder cannot be assumed to be new. It is not a patentable change, and references to patents do not meet such case.

Yet I am impressed with the contention of the appellant, grounded upon his affidavits, that a better result is obtained from the use of powdered matte for purifying oils than is obtained from the use of iron oxid and copper oxid mechanically mixed. We cannot positively assert of any chemical reaction that we know by what it is brought about. We know the final result, and by it and by the tangible and knowable we must be guided. Whether in the appellant's intimate mixture of oxids the iron acts as a carrier for the copper or whether thereby a greater surface of copper is exposed to be acted on by the sulfur in the oil I will not attempt to determine.

From an examination of the specimen of powdered copper matte which the appellant has submitted to me it is found that no separation of the particles can be effected by a magnet, but all the particles are attracted equally, though with less force than is the case with pure iron oxid; but with a mixture of pulverized iron oxid and copper oxid the same simple test will readily effect a complete separation. I must conclude, therefore, first, that powdered copper matte is not the same thing as a mechanical mixture of powdered copper oxid and powdered iron oxid; second, that the use of powdered copper matte will effect the purification of oils by the use of a smaller quantity of the powder than would be required if the mechanical mixture of two oxids were employed.

From these facts I reach the further conclusion that the use of pulverized copper matte for purifying oils is an improvement upon the use of the mixture of pulverized copper oxid and pulverized iron oxid of such character that, if new, it constituted an improvement such as is not to be expected from those versed in the art and required invention. Hence the conclusion that the appellant is entitled to these claims, and the decision of the Examiners-in-Chief is therefore reversed.

COUCH v. FINNEGAN.

Decided November 26, 1896.
77 O. G., 1595.

1. INTERFERENCE-INVENTORSHIP-ACQUIESCENCE IN USE.

After C learned of F's patent he continued to make the patented article and made no protest about F's marking the article "Patented" and did not claim the article so marked as his own invention until after his employers had got into trouble with the owners of the patent. This conduct is not that of a person who had made the invention.